Summary: There is no evidence the Council failed to provide the proper information to the family when Mr X moved into a new care home.

The complaint

1. Ms A (as I shall call the complainant) complains that the Council did not look for alternative care home placements when her father had to move home; she says the Council cannot provide evidence that alternative placements were available at the Council’s usual cost and so her family should not have to top-up Mr X’s contribution towards his fees with a third party payment. She also complains about a lengthy delay before an assessment for Continuing Healthcare funding was completed.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I considered the written information provided by Ms A and by the Council. I decided to investigate the complaint even though these events took place some years ago, as the Council’s final response is within the last twelve months. Both Ms A and the Council had an opportunity to comment on an earlier draft of this statement and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

5. Where a local authority is responsible for meeting a person's care and support needs and their needs have been assessed as requiring a particular type of accommodation in order to ensure that they are met, the person must have the right to choose between different providers of that type of accommodation provided that:

the accommodation is suitable in relation to the person's assessed needs

to do so would not cost the local authority more than the amount specified in the adult's personal budget for accommodation of that type

the accommodation is available

the provider of the accommodation is willing to enter into a contract with the local authority to provide the care at the rate identified in the person's personal budget on the local authority's terms and conditions.

6. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
7. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
8. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
9. A person must not be asked to pay a ‘top-up’ towards the cost of their accommodation because of market inadequacies or commissioning failures and must ensure there is a genuine choice. The local authority therefore must ensure that at least one option is available that is affordable within a person’s personal budget and should ensure that there is more than one. If no preference has been expressed and no suitable accommodation is available at the amount identified in a personal budget, the local authority must arrange care in a more expensive setting and adjust the budget accordingly to ensure that needs are met. In such circumstances, the local authority must not ask for the payment of a ‘top-up’ fee. Only when a person has chosen a more expensive accommodation can a ‘top-up’ payment be sought.
10. The local authority must ensure that the person paying the ‘top-up’ is willing and able to meet the additional cost for the likely duration of the arrangement, recognising that this may be for some time into the future.
11. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

What happened - background

12. Mr X, who had dementia, was admitted to a care home (“Care Home 1”) in early 2015 on discharge from hospital when his care could no longer be managed at home by Mrs X. He funded his own care.
13. By June 2015 Care Home 1 said it could not manage Mr X’s behaviour and asked his family to move him in the next two weeks. Ms A, Mr X’s daughter, contacted the social care team and a social worker discussed available homes for Mr X with her. The social worker says Mrs X and Ms A were “very proactive” in looking for homes and also asked her to look for homes in a specific area (close to their home).
14. Ms A says they looked at 11 homes but of these only one (Care Home 2) was both willing to take Mr X and had a vacancy. The other 25 homes on the list which the social worker gave to them were outside their preferred areas although still within the Council’s area. Ms A says she did not know the social worker was intending to look for a home too.
15. The social worker says on 22 June (“after the weekend – from when I said I would look into homes in the above areas”) Mrs X telephoned and said the family only wanted Mr X to move to Care Home 2. Mrs X also asked if the Council would fund his placement when his resources fell below the threshold amount. The social worker records, “I explained that this was significantly above other residential home fees and that adult social care would pay towards costs, within our residential fee levels, but there would be a substantial top up required for (Care Home 2) if this is their decision to place (Mr X) at (Care Home 2).” Ms A says the family had done extensive research of the care homes in the area and knew Care Home 2 was the only home which would meet Mr X’s needs.
16. The Council’s records show the social worker met Mrs X and Ms A at the beginning of July 2015 and explained that Mr X would pay his own fees. She suggested they contact the Council when his assets fell below the upper threshold limit. She gave them a leaflet explaining the financial implications of long-term residential care.

The financial assessment and third-party top-up

17. In December 2015 Ms A contacted the Council and said Mr X’s resources were nearly at the threshold amount. The social worker emailed Ms A and said, “if (Mr X) is assessed as eligible for adult social care support (which based on his previous needs he will be eligible as long as he is now below capital threshold) we will pay towards his residential care. The adult social care fee per week for residential care starts at £450.00 and can go up to £485.00 depending on complexity.….If the cost of the accommodation (like Care Home 2) is above the assessed fee the remainder of the fee will need to be paid by third party top up.” She also explained that Mr X’s contribution towards the cost of his care would be backdated to the point at which the Council began to assist with funding, not from the date of the financial assessment.
18. In January 2016 the social worker and a finance officer visited Mrs X. Mrs X and Ms A did not want to move Mr X from Care Home 2. The social worker noted, “we discussed the need for a third party top up, as I had mentioned to them previously the local authority would not pay (Care Home 2) fees if other homes could meet his need. Which at the time I was certain they could.”
19. On 12 February the finance officer wrote to Mrs X and said he had identified an error in previous calculations which were based on the assumption that the bank account was solely in Mr X’s name: he said he now recognised the account was joint and that Mr X was therefore already below the threshold amount in January. He continued: “Until I know the contracted weekly charge I am unable to do the assessment calculation, but as a guide, for clients in long term care their contribution is based on their weekly income and savings, less a personal weekly allowance. In (Mr X’s) case this would be around £300. There is also likely to be a third party top up added to this as the care home fees are higher than the local authority rate.”
20. Mrs X wanted to pay the third-party top-up so the cost would not fall on her daughter. The Council’s finance officer was concerned about the sustainability of that arrangement as Mrs X’s income was insufficient to cover the substantial cost of the fees. The social worker spoke to Ms A by telephone and explained that if a third-party top-up was no longer possible Mr X might have to be moved from care Home 1. She emailed Ms A on 14 April “As discussed on many occasions (so sorry for repeating this) if someone is in a placement where a top is required, or if they are self-funding in a residential/nursing placement where the fees are above that of ASC fees, if / when the local authority begin paying towards care costs or if the agreed third party top up is no longer possible, there will need to be an assessment of whether or not the individuals needs can be met elsewhere, essentially somewhere that accepts adult social care fees”.
21. The social worker emailed Ms A again a few days later confirming the Head of Service had agreed Mrs X could pay the third-party top-up in the understanding it may not be sustainable in the long term.
22. Ms A replied to the social worker: “we are aware of the possibility that Dad could be moved if / when 3rd Party top up no longer possible however we will ‘cross that bridge’ as and when.” On 3 June Mrs X signed a letter to the Council saying, “This letter is to acknowledge that I understand that if at any time I am no longer able/willing to pay the third party contribution of £403.84 pw that I understand the local authority (adult social care) will review my husband’s placement with the potential of him being moved to a residential /nursing home (dependent on care and support needs at this time) which accepts adult social care fees.

The first complaint and response

23. In September 2016 the Council’s finance department wrote to Mrs X with an invoice for the assessed contribution for Mr X backdated to the point at which the Council began to part-fund his care. Ms A contacted the social worker and asked for a finance officer to explain the calculation. She said they had not been told Mr X would have to contribute to the cost of his care as well as the top-up fee.
24. The social worker and a finance officer visited Mrs X and Ms A. The finance officer explained that the amount the Council contributed towards the placement included Mr X’s assessed contribution. Following the meeting Ms A wrote to the social worker again and asked for more information about the assessment and calculation of her father’s contribution. The Council’s records show the social worker spent some time gathering information for Ms A and spoke to her again.
25. In October a solicitor acting on behalf of Mr X’s family wrote to the Council. She said the family challenged the top-up fee as the Council had to show there were other placements available at the time which would meet Mr X’s needs at the rate the Council would pay.
26. In December the Council’s solicitor responded. She said the social worker had explained to Mrs X and Ms A that the sort of challenging behaviour shown by Mrs X at Care Home 1 was not unusual in dementia sufferers and his needs could be met in a specialist dementia care home. She said on 19 June 2015 the social worker “began to look for suitable care homes, including residential homes in the three areas your client and her mother had identified as their preference…  I understand that the family also began to look at possible residential homes themselves.” She said however that on 22 June Mrs X had told the social worker Care Home 2 was the best option for Mr X.
27. The solicitor acting for the family asked the Council to investigate the matter as a formal complaint. She said the Council had not shown that other available places could meet Mr X’s needs at the rate the Council would usually charge.
28. In July 2017 the Adult Social Care deputy director responded to the complaint. She said the Council’s records showed Mrs X and Ms A had expressed preferences for two homes and asked the social worker to find out if there were vacancies. She said the social worker agreed to do so but would also explore other vacancies at suitable homes. She said Mrs X then told the social worker they wanted to move Mr X to Care Home 2. She said the records showed the social worker had explained the financial implications of the move.
29. The deputy director did not uphold the complaint. She said Care Home 2 was the choice of Mrs X and Ms A, who held power of attorney for Mr X, as Mr X was funding his own care.

The second complaint and response

30. In October the solicitor spoke to the complaints officer who investigated the complaint. She said she had more information which might change the outcome. She said Mrs X had told her the care homes she and Ms A had visited before they chose Care Home 2 were either full or said they could not meet Mr X’s needs. The complaints officer asked for a list of the homes and said she would consider if the information changed the findings when she received it.
31. The solicitor for Mrs X also challenged the way the social worker had taken the third-party contract to Mrs X’s home for a signature and said Mrs X was a vulnerable adult and so the validity of the contract was in doubt. The complaints officer explained it was “essential to identify how the large top-up would be paid before (Mr X’s) placement commences to avoid the requirement to consider moving should the family then not sign the contract “.
32. The Council considered the new complaint from the solicitor. The Adult Social Care lead officer responded in August 2018.
33. The lead officer did not uphold the complaint that it had put pressure on Mrs X to sign the top-up agreement. He said the Council had initially declined Mrs X as the third-party signatory in view of the amount of level of the top-up required, but the family had challenged its decision. He noted the clear evidence on the Council’s files that Mrs X was accepted as the third party on the understanding that if the arrangement failed, the Council would assess whether to move Mr X to a placement which accepted the Council rate.
34. He did not uphold the complaint that the top-up fee should not apply because the Council had not sourced alternative placements for Mr X at the rate it would pay. He said the social worker had discussed other placements with Mrs X and Ms A, and was prepared to look for vacancies at homes which would meet Mr X’s needs. However he said Mrs X confirmed the family’s choice was Care Home 2 and asked the social worker to make contact with it. He added that the social worker had given information to the family about the implications of choosing a high-cost placement.
35. The solicitor replied. She said the family had contacted over 20 care homes in the area and none either had a vacancy or could meet Mr X’s needs. She said the social worker had not presented a viable alternative to the family and therefore the top-up should not apply.
36. The lead officer responded. He said the family had made its choice in the full knowledge that Mr X may be moved if the third-party agreement broke down.
37. The solicitor responded that the Council had abdicated its responsibility by presenting the family’s decision as the choice of a private client at a time when the Council could not source an alternative home which both met Mr X’s needs and which charged the rate the Council would contribute.
38. Ms A complained to the Ombudsman that the Council had not found an alternative placement for Mr X which would meet his needs. She said the Council should write off the debt.
39. The Council says the solicitor has never sent to it the list of homes visited by the family and the reasons they were not suitable. Ms A has now sent a copy of the list to the Ombudsman.

Analysis

40. At the time when Mr X needed to move care homes he funded his own care. It was therefore his decision, or that of his family who held power of attorney, which care home he chose.
41. It was not the role of the Council to enforce consideration of other homes when Mrs X and Ms A were already very clear about their choice. It may be that with hindsight Ms A and Mrs X regret not waiting for the social worker to identify alternative affordable placements which would meet Mr X’s needs but they did not do so.
42. It is not the case, as Mrs X and Ms A say, that Care Home 2 was the only specialist dementia care home in the area which could take Mr X: there were another 25 homes which they did not visit because they were not in their preferred part of the Council’s area. It is also possible that other homes which they visited may have been willing to take Mr X after an assessment but did not have the opportunity to do so.
43. There is ample evidence the social worker explained very clearly the implications of moving into a care home with fees above the Council’s usual rate. There is no fault on the part of the Council there.
44. The Council also gave significant consideration to Mrs X’s status as the third party. Mrs X signed to say she understood the potential move for Mr X if she was unable to maintain the payments. It is therefore not correct to say pressure was brought to bear to sign the top-up agreement: it was Mrs X’s choice to do so, in her position as power of attorney for Mr X’s affairs.
45. Any delay in undertaking an assessment for NHS Continuing Healthcare funding is the responsibility of the NHS and not the Council.

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Final decision

46. There was no fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman